Jurisdiction: United States Supreme Court

Dukes v. Wal-Mart Stores, Inc., was originally filed in 2001 on behalf of a class of an estimated 1.5 million women affected by Wal-Mart’s discriminatory employment practices, making it one of the largest civil rights class action lawsuits in history. The women assert that pay and promotion policies at Wal-Mart systematically disadvantage female employees. For example, evidence shows that Wal-Mart’s female employees are paid less than male employees in virtually every job category in every one of Wal-Mart’s 41 regions, despite the fact that female employees on average have greater seniority and higher performance scores.

Wal-Mart wants to make it more difficult for the women impacted by the allegedly discriminatory policies to become a part of the class that is suing it. For example, the corporation seeks a ruling declaring that victims of employment discrimination can only sue as a class if they give up their right to monetary damages. This means Wal-Mart would have to change its discriminatory policies, but not compensate the employees that it is alleged to have already discriminated against.

A federal district court certified the lawsuit as a class action in 2004[5]. The case was then heard by both a three-judge panel of the Ninth Circuit in 2007, and a second group of eleven Ninth Circuit judges in April 2009. Both courts supported the district court’s decision to certify the class. Wal-Mart then asked the Supreme Court of the United States to review the case, which it agreed to do in December 2010.

LDF has filed friend-of-court briefs in two previous stages of this case. The first brief[6], filed in 2008, supported the Ninth Circuit rehearing an issue decided by the three-judge panel of the same court. LDF argued that in the first hearing the Ninth Circuit should have allowed former employees of Wal-Mart’s stores to be included in the class. LDF felt there should be no bar to former employees who experienced discrimination joining current employees in the class. In March 2009, LDF filed a second brief[7] before eleven judges of the Ninth Circuit after Wal-Mart requested rehearing by this larger group. LDF argued that Wal-Mart’s attempt to prohibit plaintiffs from proceeding as a class if they asked for monetary damages was both bad policy and contrary to Congress’s intent to provide broad remedies to victims of employment discrimination.

Both of LDF’s briefs were filed on behalf of several civil rights groups.